Friday, February 7, 2025

Towards A People Driven Constitutional Reform

When crafting a country’s constitution, or making amendments to it, it is absolutely critical to ensure that citizens perceive the final product, which is the constitution itself to be just. A just constitution will be viewed as legitimate by those it seeks to govern because they had to make sacrifices and negotiate through a range of different societal interests to agree on what laws to settle on.

However, constitutions like ours, do not translate into increased democratic space we hope and yearn for as citizens. Citizens and their interests should always be central to such a document, as they forgo some of their freedoms and liberties to form a society that will be governed by these laws. President Ronald Reagan articulated this in his Soldiers Pledge speech that “If we look to the answer as to why for so many years we archived so much, prospered as no other people on earth, it was because here in this land we unleashed the energy and individual genius of man to a greater extent than has ever been done before, freedom and the dignity of the individual has been more available and assured here, than in any other place on earth.”

The word constitutional amendment has been thrown around by politicians a lot. The inescapable truth is that, our constitution needs changing, and some even argue that a complete overhaul wouldn’t be a bad idea. A complete overhaul seems improbable, so for now we just have to be honest in running a diagnostic test of our constitution. President Masisi was famously quoted saying “As a republic we need a constitution that guarantees equality of opportunity and treatment for all citizens regardless of creed, tribe, political affiliation and other such orientations. All discriminatory provisions will be removed in favour of more inclusive provisions”

Strongmen vs Strong Institutions

To be clear, a lot of what is wrong with our constitution is that it gives overwhelming power and influence to one person, the President. The power it bestows upon the presidency at the expense of oversight institutions is enormous. It has inadvertently, through the concentration of so much power in the executive branch of the government, created strong men, instead of strong institutions. This will sound cliché, but hear me out;

Our government is made up of the Executive, Legislature and the Judiciary and these three have specific roles they play, but the most important being that they should keep each other in check, to ensure that there isn’t any overreach by the other, and that they preserve, defend and uphold the constitution of the Republic. The truth is that, we have seen in past times, and continue to see executive overreach affecting other arms of government. This perhaps stems from the idea that, the constitution gives too much power to one person, the President. The President alone has power, to appoint high ranking government officials, this extends to the constitution of the third arm of government, the Judiciary, starting with the Chief Justice, the Attorney General and the Public Protector aka the Ombudsman.

The only way constitutional reform can work for us and further our democracy is if, there is decentralization of power, giving other arms of government and oversight institutions the autonomy they need to keep the executive, especially the president in check. Otherwise we will create a complete vertical of power unlike any other, as the Russian chess grand master Garry Kasparov notes, where the entire structure of political authority rests on one man.

As ambitious as they may sound, the much needed reforms include, but are not limited to, having a model that ensures that staffing in the Judiciary is selected devoid of executive undue influence. We cannot, as a perceived democracy, have  one man wielding so much power in the selection of those charged with the administration of justice in this country, ensuring that our presidential terms are synchronized with our election cycle, removing archaic traditions like automatic succession to the presidency, allowing for direct election of the President and moving away from the First Pass the Post System which isn’t a true reflection of popular choice and finally removing presidential immunity to deal with impropriety on the side of the president while they are still in office.

The Promulgation

The constitution of the Republic of Botswana is made up of nine chapters, but those chapters exert so much power over us, they govern us and stipulate the laws extrapolated from the liberties we have either chose to forgo, or those which we are entitled to as a consequence of that. But how many of us, besides those in the legal fraternity, know anything about our constitution? Even the most basic of things like, how many chapters it has. The road towards a people driven constitution and “the advancement of a just cause within a constitution framework requires a level of constitutional literacy for sustained and meaningful citizen participation in the constitution making” as (Wing, 2008) argues.

We cannot seek to amend the constitution when most of our citizens do not know how our constitution looks like.  This allows for politicians to highjack this process. Our most eminent and pressing challenge is that, without constitutional literacy, the entire process runs the risk of elite capture and manipulation by political class intent on taking advantage of the populace’s ignorance or honest lack of knowledge.

This is why we must be very cautious of letting the BDP regime hold all the cards, they seem to think that, just because it was in their manifesto leading up to the 2019 general elections, it is now their own personal project. This is a matter that should transcend party lines, it is a national project with so many consequences on the entire population and therefore must be central to the conversation. Politicians and political entities, especially the ruling party, because we have seen them demonstrate, with unyielding consistency disregard to the principle of country over party. They have used their numerical superiority unfairly in some cases, to tank meaningful ideas from the opposition just out of spite, they would rather hand the other side a loss than give regular folks a win.

The key question here is, if the constitution is to change, who should it change for and how? The relationship between policy makers and the electorates is highly unequal and one sided, it is controlled by an elite few, who unfortunately have also taken advantage of the cultural concept that elders or those in authority know best and thus it is against cultural norms to question those in authority.

This is where promulgation, or making an idea or belief known by people is important. We need to ensure that there is sufficient literacy on the matters of the constitution. This will allow for citizens to understand how the state must be accountable to the people, as well as the rights we are owed and duties we have towards the state.

Citizen Economic Empowerment

Our participation in the affairs of our country is limited, especially in the conversation of citizen economic empowerment. This is because there is a specter that haunts the land and gentry, and that specter is the freedom of us the poor, who have been systematically excluded from a society we all have a right to call our own.  We are gullible to ambiguous narratives like citizen economic empowerment to wrestle economic opportunities from the elite. “I have made a decision that Batswana ba sekei participate in the economy, particularly in the tourism sector. I make no apology. We want our space. We can’t be guests in our country.” Statements like these, have proved to be empty promises that were political postures meant to raise false hope and canvas for votes. If you don’t know the author of those words, you wouldn’t believe me if I told you that, the man went on a riches race, seeking to accumulate as much as he could in the time he has leased the Presidency. Yes, it is President Masisi.

Politicians like seasons change, when it’s convenient they would say anything, now the only hope we have of having a fair and equal opportunity to participate in our economy is if the law of the land is clear about the role we should have and the kinds of opportunities we must be given access to by the state. Our people continue to slave to the benefit of the elite, earning numbers which are disgusting. Botswana is one of the least paying countries in the world. 73% of workers in Botswana earn below BWP 10,000. To narrow it even further, 55,8% of workers earn less than BWP4,000. These numbers constitute an assault on human dignity, especially in a country that has a unique opportunity to afford its work force a decent wage.

Laws of minimum and or living wage, which the poor working class of this country desperately need, should be enshrined in the constitution, not left to the discretion of legislators who continue to reject it because it would hurt the interests of their financiers. It was the architect of the New Deal, President Franklin Delano Roosevelt who argued that, “no business which depends for existence on paying less than living wages to its workers has no right to continue in this country”

Of The Civil Society

It would be a grave mistake to not articulate the role of the civil society in this process, it is absolutely important as it is the driving force behind the collective needs of the working class. It needs to be able to begin its own process of internal revival, the leaders must take bold steps of uniting the working class people of this country, desist from inter union squabbles that further divide our people and clean house as it will be meaningless for them to call on the government to be open and transparent while they aren’t themselves. This will promote and strengthen democratic governance as they will be able to demand it from the government and apply the necessary pressure to ensure this. Civil society must appear to be transparent themselves as this will enhance organizational credibility. Greater transparency and accountability will go a long way in balancing a skewed relationship between policy makers and the electorate which has given rise to weak institutions, low popular participation, poor accountable and transparency in governance and a reactive government.

If we are to have any chance of meaningfully addressing these challenges of an inadequate constitution, beyond the urgent need to conclude this constitutional amendment process, we need active participation of, we, the people, in this debate and dialogue. We must move away from narratives such as “I am not political” that has plagued our society for far too long. We must participate and have our voices heard. Once this is done, as I believe can be, not only will it be easy for us to craft a progressive constitution that places value on the need for separation of powers and respect for the rule of law, while also upholding of justice. Our elected legislatures and other government officials will, hopefully embrace accountability and shifting this accountability from party interests to the people.

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